To begin with, Baldwin had always denied being a member of the Communist Party, and I've seen no evidence to the contrary. He apparently didn't get along well with the Party, which he rightly saw as authoritarian.

He also expressed support for communism as an economic system, writing in a note to be included in the 30th reunion classbook of the 1905 Harvard class,

My "chief aversion" is the system of greed, private profit, privilege, and violence which makes up the control of the world today, and which has brought it the tragic crisis of unprecedented hunger and unemployment. I am opposed to the new deal because it strives to strengthen and prolong production for private profit. At bottom I am for conserving the full powers of every person on earth by expanding them to their individual limits. Therefore, I am for socialism, disarmament, and ultimately for abolishing the State itself as an instrument of property, the abolition of the properted class and sole control by those who produce wealth. Communism is the goal. It sums up into one single purpose -- the abolition of the system of dog-eat-dog under which we live, and the substitution by the most effective non-violence possible of a system of cooperative ownership and use of all wealth.

(Robert C. Cottrell, Roger Nash Baldwin and the American Civil Union 228-29 (2000).) And despite the reference to "non-violence," the earlier quote reveals that Baldwin was willing to endorse dictatorship and not just peaceful democratic change.

Finally, Baldwin also often defended the Soviet Union; he definitely did criticize its repression of dissent and civil liberties, but he ultimately defended such repression:

I saw in the Soviet Union many opponents of the regime. I visited a dozen prisons -- the political sections among them. I saw considerable of the work of the OGPU. I heard a good many stories of severity, even of brutality, and many of them from the victims. While I sympathized with personal distress I just could not bring myself to get excited over the suppression of opposition when I stacked it up against what I saw of fresh, vigorous expressions of free living by workers and peasants all over the land. And further, no champion of a socialist society could fail to see that some suppression was necessary to achieve it. It could not all be done by persuasion.

Nor is it easy to dismiss this, as Mr. Asch suggests might be the case, as being based on lack of information about Soviet repression (i.e., to take the view that Baldwin was merely a dupe of the Soviets rather than a fully knowing supporter). Baldwin had traveled to the Soviet Union, had written about it, and had corresponded to many of his friends on the Left who tried to persuade him to criticize the Soviets (including Emma Goldman, see, e.g., Cottrell at 194, 197-98, 216). Yet he continued to defend the Soviets as late as December 1936, when the Moscow show trials were already underway. (One would think that a defender of civil liberties who had also written about the Soviet Union would know a show trial when he saw it.)

Only the Molotov-Ribbentrop Pact -- a foreign policy move rather than an anti-civil-liberties move on the part of the Soviet Union -- ultimately made him change his views. "The Nazi-Soviet pact made you feel that suddenly the Communists were different people. They had abandoned us and got into bed with Hitler." I can certainly see why many on the Left who were primarily focused on fighting the European fascists, and who didn't care much about Stalin's mass murders of his own, would see the Pact as "the biggest shock of [their lives]." But why would someone who is focused on civil liberties be more struck by the Pact than by the show trials and all that came before and after? In fact, why should he be that surprised that two totalitarian regimes would make this sort of foreign policy move?

I should probably be doing some real work now instead of expounding on this. But setting the facts straight on the history of communism, both abroad in the United States, is pretty important to me. There were unfortunately far too many people who (1) endorsed communism as an economic system -- a colossal blunder that's worth studying, and one that reflects a lack of interest in at least the property rights protections of the Bill of Rights -- (2) endorsed communism's goal of a dictatorship of the proletariat that would justify massive suppression of even noneconomic liberties, and (3) either let themselves be fooled into turning a blind eye to the Soviets' atrocities, or, in Baldwin's case, likely willingly ignored what the Soviets were doing. Among other things, only understanding this record can help us understand why the ACLU and other groups felt it necessary to condemn Communism, and why Baldwin himself ultimately turned into a prominent critic of the Soviets.

The whole story of Communism and the intellectual classes of the West from 1918 all the way to the present would make a fascinating, epic, and very long story for a good non-fiction writer. The 1930's were the first true turning point, when mounting evidence about the betrayal of Communism's ideals in the Soviet Union built up and up.

The reaction of each of these intellectuals to this mounting evidence can tell us much about that person's honesty and morality. Not only when (or if) that person turned against Soviet Communism, but where that person went politically after determining, in Arthur Koestler's words, that Communism was indeed a "God that failed."

As for Roger Baldwin, "better late than never." But, as Professor Volokh points out, August 1939 was pretty late - in fact I think that anyone who remained faithful to Soviet Communism after August 1939 remained faithful to the end.

Gordon -- I don't think it's right that "anyone who remained faithful to Soviet Communism after August 1939 remained faithful to the end." Jean-Paul Sartre didn't reject communism until 1956. Same goes for Brazilian author Jorge Amado and French actor Yves Montand, and I think many others.

ACLU founder Roger Baldwin was quite explicit that "Communism is the goal" of the ACLU, as he observed in a Harvard University publication. He said similar things earlier in 1934 in the publication Soviet Russia Today, saying that civil liberties should cease once the dictatorship of the proletariat takes power.

The idea that left-wing causes deserve more civil liberties than conservative causes continues to be ACLU practice to this day.

Thus, Burt Neuborne, the long-time ACLU legal director, said in the late 1990's that "destabilizing" speakers who oppose the status quo (like communists and radicals) are entitled to more free speech protection than "stabilizing" speakers who support the status quo (for example, a business owner).

And the ACLU supports allowing minorities to exercise a heckler's veto over speech that offends them in the workplace or on campus, under the theory that even undirected comments that minorities object to are "harassment" when they overhear them and have an adverse emotional reaction.

(See, for example, the ACLU's amicus brief in Aguilar v. Avis Rent-A-Car System (1999), in which the California Supreme Court, at the prodding of the ACLU, upheld by a 4-to-3 vote a court-ordered hate-speech gag against a San Francisco workplace and its employees based on racially offensive comments that the trial judge admitted ceased in 1994. The court order banned even a single offensive utterance, even though any hostile environment had long since dissipated (federal appellate precedent holds that hostile environments dissipate in no more than a year or two) and could not be brought back into being by a single offensive utterance (since the U.S. Supreme Court has held that a single utterance, even a racial slur, cannot be enough to constitute a hostile work environment. The ACLU argued in that case that any racial slurs, even those out of earshot of any minority, were "verbal conduct" and not speech. The ACLU's position was rejected by real civil libertarians like the Thomas Jefferson Center for the Protection of Free Expression, the National Writers Union, and the Center for Individual Rights, all of which urged the court to strike down the order as a violation of the First Amendment).

The ACLU's idea that minorities should be able to silence majorities is radically at odds with the vision of the framers of the First Amendment. The First Amendment was added in large measure in response to the fears of the anti-federalists, who feared that without the First Amendment, the majority would be silenced by a well-organized minority.

The ACLU has been far more willing than the courts to restrict private religious speech. That's possibly additional support for an ideological double-standard on free speech.

For example, in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995), the Oregon Supreme Court overturned a fine on a religious businessman for proselytizing.

The state argued that the speech was harassment. The ACLU agreed, and also argued that the speech was an establishment-clause violation (even though the speech was by a private businessman, and the U.S. Supreme Court has said that only speech by, or attributable to, the government, not private parties, is subject to restriction under the Establishment Clause).

Rejecting the ACLU's position, the state supreme court held that religious proselytizing was protected under the state constitution's religious freedom guarantee, at least unless the speaker actually knew his speech was creating a hostile work environment.

The above post argues that the ACLU twisted civil rights laws into a pretext for censorship in the Aguilar v. Avis case. Some have argued that the same was true of the Meltebeke case, where the courts rejected the ACLU's position as not sufficiently protective of civil liberties.

The ACLU has not been very supportive of free speech rights in cases involving religious students, either.

In Rosenberger v. University of Virginia, 515 U.S. 819 (1995), the Supreme Court overturned a university's discriminatory refusal to allow funding of a pro-religious student publication, while funding non-religious and anti-religious student publications, as a violation of free speech.

The ACLU filed a brief unsuccessfully supporting the University's position, arguing that the restriction on speech was justified in that case, and that the university was actually required to restrict the speech by the Establishment Clause.

The ACLU's name says it is about civil liberties. But in a surprisingly large number of cases, the courts have found that the very conduct the ACLU has defended itself violates civil liberties.

Don't know if the following, from a secondary source, sheds any light:

Like many other American liberals of his generation, Baldwin made excuses in the twenties and thirties for Soviet human rights violations far greater than the ones he had devoted his life to fighting at home. With the 1939 Nazi-Soviet Pact, he began -- again, like many other Americans on the political left -- to revise his view of the Soviet state.

Susan Jacoby, Freethinkers: A History of American Secularism, note at p. 242 (paperback ed.).

Gordon: It isn't the whole story, but Simone de Beauvoir's "The Mandarins" is indeed fascinating (and quite long). It is fictionalized, but most of the characters are very recognizable. It covers French communist/socialist activism from the end of World War II up to several years later as the various factions, among other things, choose their stance vis-a-vis Russia.

The continuing outrages perpetrated on the World by the Soviet Union after World War II forced even intellectuals like Sartre to eventually come to their senses, as he did after Hungary 1956.

As for the ACLU today, I don't agree with the organization's stances on a solid majority of issues. But, paradoxically perhaps, I think our nation is better place because the ACLU is willing to raise these issues, even when they're wrong.

I don't anybody reading Roger Baldwin's article in Soviet Russia Today and his statement to Harvard Alumni can fail to agree with Prof. Volokh's assessment that Baldwin was a Communist sympathizer and strongly supported the Soviet Union in the 1930s. But, as Prof. Volokh also rightly notes there is no evidence that he was a party member. And, indeed, there is strong evidence that the Soviet government and the CPUSA viewed him with great distrust.

In researching the KGB archives for their book "The Haunted Wood" (1999) Allen Weinstein and Alexander Vassilieve (the latter a former KGB agent) came across a file on Michael Straight, the wealthy son of the founders of the New Republic, who, under the tutelege of the Cambridge Five, became a Soviet spy after his stay at Cambridge University in the mid 1930s.

Straight was a friend of Baldwin, something which did not go over well with his NKVD handler in the United States, Itzthak Akhmerov, known to Straight as "Michael Green." Tasked with "nurturing" Straight after he came to the United States in Sept. 1937, Akhmerov succeeded well, telling Moscow central that Straight "follows all my advice." But one thing about Straight bothered Akhmerov, and that was his relationship with Baldwin and other non-party friends. As AKhmerov put it in a memo: "His milieu at the New Republic exerts a not-very-healthy influence on him. A liberal like Roger Baldwin, outwardly a friend of the USSR but in his soul and in fact its enemy with great sympathy for Trotsky, . . .cannot help but exert a negative influence on him."

Why Akhmerov viewed Baldwin with such distrust is unclear, though doubtless the latter's "sympathy" for Trotsky was enough to damn any Communist or fellow traveller in the eyes of Soviet officials in the 1930s. But it is clear, I think, from this memo that Baldwin wasn't a member of the CPUSA, whatever his Communist leanings.

1956 saw an exodus from the CPUSA. That is when Khruschev admitted the crimes of Stalin. These were well known before, of course, but when Stalin's successor affirmned the bloody facts, it then became a "truth" the faithful could not avoid. The CPUSA never recovered. Khruschev's '56 denunciations of Stalin were more of a bombshell than the Hitler-Stalin pact in terms of CPUSA membership attrition.

Good point. But it sort of leads to the big flaw in the whole "Russia distrusted him, so he wasn't a Communist" theory.

Wouldn't that standard mean that Trotsky wasn't a Communist? Or that the hundreds of thousands of hardcore, car-carrying, true-believing Communists sent to the Gulag or shot in the neck weren't commies, after all?

It's important to note that most Americans in the heyday of Communism were frightened by American Communists not because they had any chance in Hell at getting their way, but because they were foreign agents who accepted large sums of money to support their activities from the Soviet Union, a very hostile foreign power. If Baldwin wasn't on the Soviet dole, that's at least a very small check mark in his favor. But it's pretty obvious that whether they were paying him directly, indirectly, or not at all, he was willing to do whatever it took to help the guys who were taking marching orders from Moscow.

One of the things he did to help them was set up an outside law firm to defend them, should anyone start asking too many questions as to where they got their money and other resources.

I don't think I presented a "theory" that since Straight's NKVD handler distrusted Baldwin, he therefore wasn't a Communist sympathizer in the 1930s. Of course Baldwin's views and hopes at the time mirrored those of the CPUSA and the Soviet Union. But since Akhmarov -- and probably the leadership of the CPUSA -- considered him a Trotskyite, he was clearly, in their eyes, a deviationist, and thus persona non grata.

As for your point about Baldwin doing "whatever it took" to advance the cause of Communism in the United States in the 1930s, there is much validity to that claim. But he wasn't an agent of the Party and didn't take "marching orders" from it. What he did to advance its interests was done out of sympathy for the Communist "idea " which he saw embodied in the Soviet Union. In that respect he was a fellow traveller, someone who promoted the "cause" without swearing undying fealty to the iron discipline of the Party.

You might think that's a distinction without a difference but to committed members of the Party that was reason enough to distrust him, whatever good he did for them through his law firm and the ACLU.